African Chiefs of State and the Law

In his rightfully celebrated speech at the African Union (AU) headquarters in Addis Ababa on July 28, President Barack Obama proclaimed, “no one person is above the law, not even the president.” This is a fundamental principle of American law, based on centuries of English precedent, but it is by no means universally accepted.

The AU, an organization that includes all of the continent’s independent countries except Morocco, has a problematic record of upholding this principle. The AU is based on the idea of an overarching African unity, and many Africans hope that it will evolve into an African equivalent of the European Union. Its importance has increased since its establishment in 2002. It has played an important role in promoting the unacceptability of military coups and has imposed sanctions where coups occur.

The AU is dominated by chiefs of state and the heads of government of its members. They make up the Assembly of the African Union, the highest decision-making body that meets semi-annually. It should, therefore, be no surprise that the AU is ambiguous at best about the principle that chiefs of state are subject to the law.

With respect to the International Criminal Court (ICC), the Assembly of the African Union voted to reject its authority over chiefs of state or heads of government, with specific reference to the trial of Uhuru Kenyatta, Kenya’s president, for crimes against humanity. With respect to the AU’s African Court of Justice and Human Rights, an entity with a function similar to that of the ICC, the Assembly explicitly voted to grant immunity to chiefs of state just last year, amid criticism from various observers and human rights groups. Amnesty International criticized the AU as contradicting its own constitution, particularly an article affirming AU members’ right to intervene in situations of human rights crimes or genocide.

The ICC and the African Court are extra-national entities. If the AU appears to reject their authority over chiefs of state and heads of government, it appears to have taken no position on whether they are subject to their own national law. For example, the AU was silent when African chiefs of state have set aside constitutionally mandated term limits, a practice which President Obama strongly criticized in his July 28 speech.

Poor governance has been perhaps the greatest barrier to Africa’s economic, social, and political development since decolonization. A characteristic of this poor governance has been the lack of accountability by political leaders to their own people wherein “big men” would facilitate their rule by setting aside term limits. During his 2009 speech in Ghana, President Obama famously said, "Africa doesn’t need strongmen, it needs strong institutions." President Obama’s July 29 speech had a continent-wide audience. It is to be hoped that the AU will promote the accountability of African leaders to their people and acknowledge that they are subject to the rule of law.